Growing interest in restrictive covenants in some neighbourhoods in response to city council’s approval of blanket zoning
A growing number of households in Calgary are registering restrictive covenants on their land titles, pushing back against new city zoning regulations that allow for higher density in older communities.
The idea has particularly caught on in Lake Bonavista, where hundreds of households have teamed up with a law firm to register the covenant on their land titles. A local volunteer committee formed to promote the idea has been hosting information sessions about the private contracts for residents of the southwest lakeside community.
Lake Bonavista resident Karen Robinson, a spokeswoman for that volunteer committee, said the community’s growing interest in restrictive covenants is in response to city council’s approval of blanket zoning this spring.
“For everyone in the community who signs onto the restrictive covenant, you’re basically agreeing you won’t subdivide your land or build a multiplex,” she said. “You can still have a secondary suite — so a basement or garage suite is still permitted — but you won’t subdivide your property or build a multiplex.”
A component of the city’s housing strategy, the zoning change intends to allow for more densification in established communities by permitting property owners to redevelop single-family detached homes into other housing types, including duplexes and row houses, without applying for a land-use redesignation.
The new zoning rules went into effect in early August. While proponents of the new rules argue it will add to Calgary’s overall housing supply and create more affordable dwelling options in established communities, Robinson feels restrictive covenants are homeowners’ only legal recourse to prevent their streets from being inundated with new multi-unit infills.
“Many of us tried to have our voices heard at city council through the public hearings that were held, and the majority of people who spoke or submitted in writing were expressing concern and opposition to blanket upzoning,” she said. “Council passed it without a plebiscite and without listening to those concerned Calgarians’ voices.”
What is a restrictive covenant?
Restrictive covenants are private contracts between two or more properties that can restrict what land uses are permitted on their title. According to a post on law firm Brownlee LLP’s website, restrictive covenants “may have historically been used to preserve a particular character of a neighbourhood and to attract a uniform class of purchasers.”
The city’s legal department said restrictive covenants stipulate how a property may be used and developed. The covenants are registered at the Alberta Land Titles Office and may place limitations on what can be done on the property.
“These may include, but are not limited to, restricting development to one or two-unit dwellings,” the city stated. It added that a restrictive covenant is only enforceable by the parties who own land with the same covenant registered on title.
“The validity and enforcement of a restrictive covenant is a private civil matter to be dealt with between the parties subject to the agreement.”
The Lake Bonavista group has commissioned Carbert Waite LLP to help them draft their own covenant for the neighbourhood, and hundreds of households are paying a $500 registration fee to sign on.
Lauren Garvie, a lawyer with Carbert Waite, said she predicts 15 to 20 per cent of Lake Bonavista’s approximately 3,000 households have signed or intend to sign onto the contract.
The idea is being explored in eight or nine other neighbourhoods, Garvie said, noting her firm has done similar work in the southwest communities of Kelvin Grove, Eagle Ridge and Chinook Park.
“What I’ve been told by clients is they’re interested in pursuing some type of private property right, and have perhaps felt the public process hasn’t considered redevelopment in their community in a way that is consistent with the character of their community,” she said.
But just because a restrictive covenant is on title doesn’t mean redevelopment is impossible. For instance, a buyer of the property can seek legal recourse to have a covenant removed. And any adjacent properties that don’t sign onto the covenant are free to do as they please.
And while a new buyer can bring a court application to remove a covenant, Garvie argued it’s difficult to do so. She said the process involves providing notice of an application to remove the covenant and, once that’s provided, there has to be agreement among all those signed onto the contract — or a certain percentage of them, depending on the terms.
“In my experience, it has been very difficult for a community member to be successful on that application if the removal of a restrictive covenant is opposed in any way,” she said.
“Because a restrictive covenant is a private property right that runs with the land under the Land Titles Act, it will show up on the title for a subsequent purchaser.”
The city’s law department said planning considerations are not bound by the existence of a restrictive covenant. Rather, the city makes planning decisions based on its own land-use bylaw, or other land-use policies such as the Municipal Development Plan or the applicable Local Area Plan.
“Where there are restrictive covenants that do not align with the direction of the MDP and LAP, the city supports the direction of the MDP and LAP,” it said.